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Tootech writes "Using an iPhone to secretly record a conversation is not a violation of the Wiretap Act if done for legitimate purposes, a federal appeals court has ruled. 'The defendant must have the intent to use the illicit recording to commit a tort of crime beyond the act of recording itself,' the 2nd US Circuit Court of Appeals ruled. Friday's decision, which involves a civil lawsuit over a secret audio recording produced from the 99-cent Recorder app, mirrors decisions in at least three other federal appeals courts."

It's up to 5 years, and he's likely going to be convicted on at least some of those other charges when it goes back for retrial. Despite his characterization as having beaten it, more likely from what I've read the defense just managed to luck out on jury selection and get enough people that were less politically sophisticated and couldn't tell the difference between political talk and corrupt deal making.

I don't think the old lady who was the lone holdout was "less politically sophisticated". My bet is she was a life-long straight-party-ticket voter. There's a lot of people out there (on both sides) who think that anything is OK as long as their party is the one that's doing it. "He may be a crook, but he's OUR crook"

Don't blame the whole state for what is really just the fault of Chicago and its exurbs. The people living in the rest of Illinois try to clean-up the corruption

You don't live in Illinois, do you? The whole state is crooked. Cahokia (down by St Louis) has had the same Mayor for decades, despite the fact that it changed from a nice suburb to a ghetto after they paved E. St. Louis. I grew up there, Cahokia was always corrupt.

I'm living in Springfield now, and the legislators come here for legislating sessions. The way those folks drive you can see that the people making the laws have less respect for them than anyone. A pair of judges here got into hot water a month or two back for one fixing the other's daughter's traffic ticket. A cop here was found planting evidence on a drug suspect.

The citizens would like it cleaned up, but we're powerless; we get the candidates that get nominated. Do I vote for a shit sandwich or a turd sandwich?

Indeed, Florida and Louisiana also seem to make the news all to frequently for it as well. Unfortunately, it's a matter of degrees, from the kind of lying we've come to expect from politicians to bribery and kick backs. I'd be a liar if I suggested that where I'm from is completely clean of it, we've got sunshine laws and have taken steps to take away a lot of the power from the political parties for that very reason, but you're never going to completely eliminate the corruption, just make it difficult enou

Lets follow that path a little.Someone could edit a letter between themselves and someone else and release that, should keeping correspondence without the explicit permission of both parties be illegal because of that?

And if the editing is malicious and misrepresents someone then it should be covered under libel laws.

All your approach does is allow politicians and policemen know when they should actually pay attention to the rulebook rather than having to stick to it all the time.

You know, instead of playing the whole thing, you only show the 2 minutes of relevant material.

Are you saying the part immediately after the edit where Sherrod explained how she decided not to be racist and to help the white farmers and learned from the experience was irrelevant?

If you publish an excerpt with the intent to show racism, and the part immediately after you make the edit shows that there wasn't racism, that's really sleazy character assassination, and probably grounds for legal action (which is now underway). And coming from a man who claims to be an example of "conservative journalism", I'd say that makes Andrew Breitbart a lying, greasy douche-nozzle. And before you make what I expect to be your next rationalization, yes, Breitbart admitted to knowing that the tape was edited and also knowing about what was edited out.

Right or Left, it doesn't make much difference. They both lie freely. Allowing a "news program" to intentionally misrepresent the truth was a very bad decision. Don't know what would have been a good one, though. If you're vulnerable if you present lies, then someone will say that you lied, and probably be able to prove it. (Nobody can be accurate all the time.) I've generally given up on the media as a source of truth, and depend more on bloggers. And THEY lie. But they're much less professional ab

We can only hope that the Federal courts can overrule this, at least on the fact of intended use.

Trying to use it to blackmail, yeah, bad. You're trying to use it in commission of a crime. PMITA prison.

Trying to use it to CYA, especially in a "He Said, She Said situation", can be the only way to protect yourself. Moreso if the other party is the police, who are given a higher degree of trust on account of their position. Ironically, seems like protecting yourself can get you more prison time than a fals

Sorry citizen, but public officials cannot be recorded without their consent. It's not like you pay their salaries or anything. We went from a people that control the government, to a government that controls the people.

and if what you are "told to do" is to turn off your legal recording device so they can harrass you then what? You are pathetic with a capital P; just lick the hand that beats you while you are at it.

Deserve? DESERVE?!?! are you friggin kidding me. First while I generally do speak to cops with respect it is because they come at me from a place of respect (like the last bullshit ticket I got which I 100% deserved but the scenario was still bogus and the cop should have warned me and moved on). But, if they start out from a place of bullshit, like pulling me over for no good reason and I KNOW I'm 100% on the legal side, I will and HAVE called a cop a liar to his face

Cop tailgates me in the right lane at 2am for 5 miles with his highbeams on between Cincinatti and Dayon OH. Cruise control is set at one mile below limit. He FINALLY pulls me over:

Cop: I pulled you over because you crossed the white line,Me: That isn't true and you know it, but lets not argue about it... no ticket and not even a field sobriety test which was why he pulled me over I have no doubt.

And this has nothing to do with complying with orders. This has to do with legally recording an interaction with a public official to ensure he does not abuse his authority, even while complying. Or more to the point, to PROVE that you complied, and the abuse still happened. You don't think it happens very often huh? Gee I guess we'll have a hard time knowing without the recordings. Oh wait, we DO have the recordings so we know it DOES happen.

It has to me, cops lying through their ass in court. Caused me a world of grief, a lot of money and time to get the situation fixed. I was looking at *twenty fucking years* from them outright lying. No, I didn't get beat up, but a friend of mine who was with me got arrested on the bullshit charges, they stuck him in a cell with some huge nasty dude and he got raped, while the laughing pigs stood there and watched! I was in the cell right next to him. Little bitty guy didn't weigh 120, totally innocent. Thos

I'm sorry, but if that's how you talk to cops, you kind of deserve whatever happens to you.

I was going to write a well thought out insightful rebuttal to this point... but I can't quite get past "what the fuck are you saying?". People have the right to speak to police basically how they want (with few valid exceptions). People like you who kiss the cop's ass every time they look at you mean are part of the problem. If police expect everyone to treat them as if they were on a pedal stool [youtube.com], then they wil

What's notable about this case is that Connecticut (where the incident took place) is a 'two-party consent' state, at least for recording phone calls. This incident took place face-to-face, which prevented the state laws from coming in to play.

A question for those with more knowledge of the legal system: Can this be used as precedent against two-party consent laws for call recording?

In any case, this ruling doesn't really change anything. The court's finding is taken almost verbatim from the statute, so it's pretty much nonsense that a federal lawsuit - much less a federal appeal - was ever filed in the first place.

This is not a case where federal law can be used to "trump" state law. If the U.S. Congress passed a law that said "it is legal to

And that legal theory applied in many scenarios and is, IMNSHO, fucking retarded. The blackmail is already illegal. We don't need to make the means by which the blackmail was facilitated illigel. An act btw, that we already admit is NOT actually a crime in and of itself. It is this legal manuvuering that allows the legal system to pile on bullshit charges in an effort to force defendants to plead out because the sum of the charges, all stemming from only the only "real crime" of blackmail (in this examp

No, this makes it illegal to record someone intending to (e.g.) blackmail them.

Meaning you can be busted before you even threaten them with blackmail, if it can be proved that was your intent. And the situation can be obvious enough that your only intent could be blackmail. Or you could be recorded saying that's why you were doing it. Or you could confess.

It's not a bullshit charge. Doing bad things is bad. The law wants you to know that.

No, doing illegal things is against the law; it has nothing whatever to do with good and bad. If you have an illicit affair with your best freind's wife, that is obviously wrong by most people's standards, but it's perfectly legal in Illinois. Your smoking a joint harms nobody, but that's illegal and they'll put you in jail for it. It's perfectly legal to go to a casino and play poker, but to sit in your kitchen playing poker with your friends is again

similar idea, white collar crime where some email exchange is involved each and every email counts as a separate case of wire fraud so someone in the course of a few conversations can rack up hundreds of years of jail time.

what I don't get is why they don't just bite the bullet and make committing any crime while having eyebrows and not wearing a pink shirt with the word "crime" written on it prominently a mandatory 1000 year sentence.

Then everyone who loves the "but it means they can add extra charges" thi

The act becomes retroactively illegal based on subsequent illegal acts--or plans to commit illegal acts--which is just stupid.

It makes more sense if you understand the concept of mens rea. [wikimedia.org] The act does not become illegal retroactively as you say; it is illegal or not, at the time you make the recording, based on your state of mind at that same time. In other words, you're guilty if and only if you're thinking to do harm, which is actually pretty universal in criminal law (setting aside criminal negligence and "victimless crimes"). IANAL.

It depends on the nature of the conversation. Usually there's a clause where the other party must have a reasonable expectation of privacy. So while recording a phone conversation will get you busted, recording a conversation out in the middle of the street will not. Some states say that only one party needs to consent (the recorder, generally), some say that both parties must consent.

There are twelve 2-party states out there, and some of them are big ones like California and Florida. And calling a two-party state from a one-party state does mean you need to follow the laws of both states.

There are twelve 2-party states out there, and some of them are big ones like California and Florida. And calling a two-party state from a one-party state does mean you need to follow the laws of both states.

IANAL, but couldn't you only be criminally prosecuted in the state you broke the law in though?

Supposed I call CA from TN and record the conversation. I couldn't be criminally charged in TN as I broke no law there. If charges were brought in CA then that would be irrelevant if I never actually went there right? Afterall that seems about as likely as being tried in China for me posting an account of what happened at Tienanmen Square. Sure it was against the law there, but I'm not there, so it's irrelevan

"According to California court case Kearney v. Salomon Smith Barney, Inc. (July 13, 2006) if someone from a one party notification state calls into a two party state such as California, then the two party notification law outweighs the one party notification law."

It's not so cut and dried as that. As far as I can tell, there's a whole lot of ambiguity regarding calls between one-party and two-party states. No one really knows how a challenge would shake out.
http://www.rcfp.org/taping/interstate.html [rcfp.org]

If you called California from TN and recorded the conversation without the consent of the other party, you could be charged under CA law. If you were convicted, CA could request that TN extradite you to CA. I do not know of any case where one state has refused another state's extradition request.

If you called California from TN and recorded the conversation without the consent of the other party, you could be charged under CA law. If you were convicted, CA could request that TN extradite you to CA. I do not know of any case where one state has refused another state's extradition request.

Absolutely false - they need to extradite you first, THEN you have a trial. Not going to happen too often. So if you're in a one-party jurisdiction, record away, now that federal law outweighs the 2-party state la

There are generally exceptions in two-party consent states when recording calls without the consent of the other party if it is reasonably expected to retain evidence of a crime such as harassment or blackmail. In other words, it's generally okay to tape record a prankcaller or blackmailer without their consent.

My understanding is that this ruling didn't cover phone conversations, as the incident in question took place face to face. As in, the guy set his iPhone into Voice Memo mode, and did his business with the other guy.

In my original post, I didn't even mention phone calls, because the question is "do you need the consent of someone else to record a conversation", and the answer is no, not if you're part of the conversation. The other person is talking with you - they have NO reasonable expectation that you will not hear the conversation - you're one of the parties to the conversation. However, what's NOT allowed is for you to hang around two people who are having a conversation that doesn't involve you, and recording it

It's never been illegal to record police in public. That hasn't stopped certain corrupt police departments and district attorneys from persecuting people who do so, of course, but they've used twisted logic, not actual law, to make their cases. Radley Balko at Reason has done a number of excellent exposes on this problem.

Practically makes me want to drown my sorrows in synthetic Victory Gin while I try to keep the tobacco in my last Victory Cigarette, while sitting just out of range of the telescreen of course. Orwell got more than a few things wrong too, and pretty much every dystopian novel got at least a few things right.

Nah he figures he'll get much less attention by going around wearing a ski mask.

Oh, come now, it's a Luchadore mask and tights.:-P

But, seriously, unless you are being recorded (both audio and visual), conducting business in plain sight in a crowded area has long been considered to be about as private as you can get without being conspicuous about it. You're about as anonymous as you can get -- unless you are truly being tailed that is.

I was specifically talking about blanket recording of everything everyb

How do you have an expectation of privacy when you're in public? Do you go around waving your arms and yelling "Don't look at me!"

I expect that I can be seen. But, if I'm in a park and move away from everybody in order to discuss something out of earshot of everybody else, I don't expect that it would be legal for all of the trees to be simply recording everything that happens on the off beat chance somebody, at some time is doing something shady/illegal.

The same logic applies (or should apply) to video recordings. If you are doing it in public, where it can be seen, it can be photographed, so long as the technology doesn't surpass the capabilities of a casual observer* (telephoto lenses, etc.). So if you are sitting in Starbucks, yakking with your freinds, if the guy in the next booth can hear you, why not record you?

If you 'move away', that's another matter.

*I've done some work with private detectives and this is the standard that courts apply to video

I don't agree. Secluded locations in public are still in public. It's not an unreasonably burden to take your conversation onto private property, out of view/earshot of the public, and a failure to do so suggests that you don't care that anyone else heard your conversation, or at least don't care enough to make it truly private.

For example, you wander off into the trees to get some "privacy" in public. But unbeknownst to you, someone else already wandered into those same trees and is dictating their thought

There are way too many people lying and getting away with it nowadays, politicians or otherwise. Do I want all my conversations recorded, no, but I've tried to live with the motto of "Say what you mean and mean what you say". I wont say anything about someone unless I am willing to say it to their face and I think that is something missing from society today.
I've had instances where a recorded conversation would have come in very handy in defending myself from ex girlfriend's attacks but it wasn't that big of a deal to me.

Do I want all my conversations recorded, no, but I've tried to live with the motto of "Say what you mean and mean what you say". I wont say anything about someone unless I am willing to say it to their face and I think that is something missing from society today.

It's not about what you say about someone. It's about friggin' thoughtcrime.

"Are you now or have you ever been a member of the communist party? Are you a homosexual? Do you disagree with the policies of the current government?"

Agreed that's why the Government shouldn't be able to record every conversation I have. However, if I'm having a conversation with another private party (or hell, maybe even the Government), I should be able to record said conversation, at the very least for note taking purposes, and at the worst for a CYA measure. In the former case, a courtesy notice that I am recording would be nice, and probably expected. I'm not so sure about the latter.

Agreed that's why the Government shouldn't be able to record every conversation I have.

The problem is, we've already seen what happens when the Government is the only one prohibited from doing this.

There's all sorts of information the government isn't allowed to gather domestically without running afoul of something. The problem is, they merely buy the information from a corporate entity, and the whole thing becomes legal.

But I don't really say anything that I'd care about coming back to haunt me. Granted right now we live in a semi-free speech society, and that could change but I still can't see a real problem with it.

Now to address the other part of your post concerning the government's surveillance, how about if it is going to be initiated for Law enforcement then restrictions should be in place, like warrants etc... So if a cop or federal agent comes to your house to talk to you about your recent postings online they ha

Let's say we have a conversation. I record it. I pull an Andrew Breitbart on it and make it sound like you want to murder your wife/employer/boyfriend/husband/mechanic and make it a credible threat and then I play it for them. That may ruin your life. Over a recording you didn't want to happen.

Why is it important that the recording was performed with this particular device?Are these kinds of rulings specific to the equipment used, or is this just the kind of story that needs buzzwords to get attention from certain demographics?

Back in the 1970s my dad had a magnetic pickup with a suction cup that we could stick on our hefty Bell System phone. When plugged into our Radio Shack portable cassette recorder, we could touch upon these exact same legal issues, almost 40 years before this iPhone app!

But I guess that due to the reality distortion field, none of that really ever happened. None of this was logically possible before the iPhone App Store. Thanks to the iPhone, my childhood has vanished; it never existed at all. Now I feel lik

Lawmakers and judges don't understand technology, so the law does regard different technologies as totally different. So for example the government can read your e-mail without a warrant but can't read your postal mail without a warrant; VoIP has different regulations than circuit-switched telephones; video rental records are mandated by Federal law to be private, but your Web browsing history is not. It's madness.

Whether an existing law applies to a new technology, or not, is pretty much a roll of the dice.

A certain chunk of users on/. can't follow a story unless it has the word Apple or i___ in it or the story contains some highly reflective surface. Once in a while they will read something about the economy until they realize that Jobs was referring to reality not their glorious leader. Seriously this story has nothing to do with the iPhone at all.

Interestingly, I recently tried to use the voice recorder on the iPhone to record a conversation I was having with a couple of really annoying DirectTV customer service people (If I can say it here, IT IS THE WORST EVER). Where they asked me to call later due to system problems (knowing that their offices will be closed "later"), and arguing that they will not cancel my order, etc, etc.

Long story short... the voice recorder cannot be activated while you're having a call. Does this article means an update

Why is it important that the recording was performed with this particular device?

Well, note that they're talking about wiretap laws, but the recording under discussion was done via physical proximity, not via "tapping a wire".

If the recording had been done via an old analog microcasette recorder, would wiretap laws have ever come up? In this case, the recording was done by a phone, even though nobody was recording a phone call. I could see a need for the courts to provide clarity in this case. Because

Ok, but how is it relevant that it was an **IPHONE**? My 10 year old Motorola V50 could record calls as well as a regular face to face conversation, and so could my parent's 12 year old cd920/930, not to mention my current WM and Android phones.

The ruling, from what I understand of the summary, is saying that the act of covert recording in and of itself is not a criminal act. It says nothing about admissibility of said recordings in other cases, merely that you cannot be charged solely for having made a covert recording.

I'm carrying a device that makes phone calls, plays music, has digital memory, and sometimes includes the ability to take voice memos, but it does not include built-in a feature for recording incoming and outgoing phone calls to that memory, all because of differing jurisdictions over whether or not you can record calls to which you're a party.

These things have GPS built-in! Can't you just code the feature so that it complies with your location's laws?! Disable for certain corrupt-government regions, enable for others but regularly beeps, starts with an automated announcement, or runs in stealth mode according to your jurisdiction? Come on!

As a bonus, include the ability to disable cell phones entirely based on GPS location so you no longer have to confiscate them when people enter your military base.

And hey, can we get an exclusion to the wiretapping law for parents and legal guardians of minors so that they can monitor little Jimmy's drug trafficking deals and Jenny's prostitution hook-ups?

You don't want to disable phones based on GPS location instead of confiscating. For what would you do when there is no GPS signal, e.g., indoors? (If you allow the cell-phone use, then the bad guys can use cell phones on a military base after removing the GPS antenna. If you don't allow the cell-phone use, then lots of good guys suffer because they can't make calls indoors.)

This doesn't affect the recording feature suggestion, as that could be done via cell-tower ID.

I'm carrying a device that makes phone calls, plays music, has digital memory, and sometimes includes the ability to take voice memos, but it does not include built-in a feature for recording incoming and outgoing phone calls to that memory, all because of differing jurisdictions over whether or not you can record calls to which you're a party.

Android has a couple of apps that do it. But I can't imagine Apple (or any other operator of a closed OS) would want to make those kinds of apps available.

As far as recording calls, it's actually much simpler than this. All that is required for recording in two party states is a regular interval beep. Why not make the capability available to all and just insert the beeps?

Now if you want to secretly record, that's different...

A guy once told me that he secretly recorded all of his calls so he could catch people in lies... I told him that he should just tell everyone he was recording and then people would be less likely to lie in the first place. Better to

Strange.I had a Panasonic over 15 years ago and it could record calls. It was basic and could only record for a number of seconds. I guess now it was for recording spoken addresses and phone numbers. I never used it.

My last Sony could record calls. This was 4 or 5 years ago. Horrible Sony proprietary audio file. I never used it.

My current Samsung, that's a couple of years old, can record calls. A nice mp3, on the memory card, as you'd expect. I've never used it

Manufacturers worry about being sued as an accessory for enabling a feature that directly assists in commission of a crime. If it is technically feasible that they could take measures to prevent its misuse, that becomes mandatory, else they're being reckless and contributory. Putting it in the EULA as a prohibited use might not protect them at all and serve only to prove they knew it could be used illegally.

It isn't feasible for a hammer to detect skin (let alone stop your arm in mid-swing), a car to read p